Complainant

Respondent

Anonymised Parties

A Landscaper

A Landscape Contractor

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00018978-001

04/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00018978-002

04/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00018978-003

04/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00018978-004

04/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00018978-005

04/05/2018

The respondent company is a long-established landscaping business and the complainant, who is Latvian, joined them as a general operative in October 2005. On October 25th 2017, he was seen putting a box for welding rods into a van in which he was getting a lift home. Following an investigation, the company’s directors concluded that the complainant intended to steal the box of welding rods and he was dismissed for gross misconduct on November 10th 2017.

The complainant claims that his dismissal was unfair. He also submitted a complaint that he was not given notice of the respondent’s intention to dismiss him and he was not paid in lieu of notice. Lastly, he claims that, by dismissing him, the respondent has discriminated against him on the grounds that he is from Latvia.  

At the time of his dismissal, the complainant was earning €525 per week, plus overtime pay when overtime was available. On the final day of the hearing, December 4th 2018, he had not worked since his dismissal in November 2017 and he said that he was suffering from stress.

On February 8th 2019, the complainant submitted a letter from his doctor dated December 3rd 2018. In this letter, his doctor noted that the complainant had a difficult relationship with his employers and that he was off work from October 2016 until January 2017 because of stress. He attended his doctor again on October 17th 2017, following an argument with his boss and he was out of work due to stress again, this time for only four days, until October 20th. The doctor’s report notes that “he ultimately left work, having been accused of stealing” and that “he was upset by this allegation.”

Chronology of Events Leading to Dismissal

October 25th 2017

The company was building a new garage and the machinery supervisor, “Mr Murphy,” was over-seeing the transfer of materials and equipment from an old shed to the new garage.   He asked the complainant to clear out the shed and to move usable equipment and materials to the new garage. He was instructed to put waste and non-usable stuff on a pallet for removal to a skip.

During the clean-out, the complainant came across two boxes of welding rods, a large, red, plastic box and a smaller, yellow box. In his evidence at the hearing, Mr Murphy said that he told the complainant that the rods were good. The complainant brought a pallet of still-useful stuff to the garage. During the investigation into this incident, the complainant said that he needed the red box because he had welding rods at home that fitted into the box. He said that he took the rods out of the red box and left them beside the yellow box on the pallet of useful materials for the garage.

As he was walking to a colleague’s van to get a lift home, the complainant was carrying the red box for the welding rods. He was seen by one of the company’s directors, “Mr O’Donnell,” who asked him what he was doing with the box of welding rods. The complainant replied that he wanted them. Mr O’Donnell told him to put the box back, and, although he didn’t do so immediately, when Mr O’Donnell repeated the instruction, the complainant put the box back. Mr O’Donnell then retrieved the box from where the complainant left it and he showed it to Mr Murphy. The red box was half full of welding rods and the yellow box was inside the red box.   There were no boxes of welding rods on the pallet of good stuff that the complainant had left at the garage.

October 26th 2017

Mr O’Donnell informed the managing director, “Mr O’Connor” what had happened with the box of welding rods and Mr O’Connor called the complainant to a meeting. When he was asked about taking the box, the complainant told Mr O’Connor that it was empty and that he was taking it to keep his own welding rods in it. Mr O’Connor brought the complainant to where he said that he replaced the box, and, although the complainant said that there were a few red boxes, Mr O’Connor said that the only box they had was the one he had returned, which was not empty, but which was full of welding rods. The complainant said that, when he decided to take the box, he took out the welding rods and that he had left them loose on a pallet.   When he replaced the box at the garage, he said that he put all the rods back into the box. Mr O’Connor remarked that the complainant seemed to be changing his story, to which the complainant is alleged to have replied that he could change his story five times if he wanted.

At the end of the meeting, the complainant was suspended on full pay pending an investigation.   The letter notifying him of his suspension said that the reason was to facilitate an investigation into “alleged theft or unauthorised possession of our property, irrespective of value, namely it is alleged that on 25th October 2017, you have removed welding rods box (sic).”

Later the same day, Mr O’Connor interviewed Mr O’Donnell and Mr Murphy about what had occurred with the welding rods the previous day. Mr Murphy said that around 2.00pm, he was with the complainant as he was sorting out stuff to move from the old shed to the new garage. He saw a red box of welding rods and a yellow box of rods and he told the complainant that they were good. The complainant brought all the good materials on a pallet to the new garage.

Mr O’Donnell said that around 4.00pm, he saw the complainant going to the van of the person with whom he was getting a lift home. He had a red box for welding rods in his hand and Mr O’Donnell asked him what he was doing with it. He said that the complainant replied, “I need them.”   Mr O’Donnell told the complainant to put them back, which he did.

Mr Murphy said that Mr O’Donnell came to him around 4.05pm with a rex box of welding rods. Inside was the small yellow box of rods.   There were no boxes of welding rods on the pallet of good materials for the garage.

November 1st 2017

The complainant was invited to a disciplinary meeting which was scheduled for November 7th. The letter of invitation included copies of statements of Mr O’Donnell, Mr Murphy and a note of the meeting that Mr O’Connor had with the complainant on October 26th. He was advised that he could bring a colleague to the meeting and he was also provided with a copy of the company’s disciplinary rules and procedures.   In the letter inviting him to the disciplinary meeting, the complainant was informed that the incident was being treated as gross misconduct and that if he was unable to provide a satisfactory explanation for what occurred, he would be dismissed without notice.

November 7th 2017

A disciplinary meeting was chaired by another director, “Mr Tobin.” The complainant attended initially on his own but then asked for a named colleague to act as a translator.

At the meeting, the complainant challenged Mr Murphy’s statement, alleging that Mr Murphy was told to say that the red box of rods was among the materials being cleared out of the old shed and that he saw it at 2.00pm. The complainant said that he only came across the red box of welding rods when he was almost finished the job. It was underneath other items. He said that the red box “was not even half full” and he took the remaining rods out and placed them on the pallet of good materials beside the yellow box. He then went to the van with the red box. When Mr O’Donnell told him to put the box back, he said that he went to the pallet and put the yellow box and the welding rods from the red box back into the red box.

When he was asked why he was taking the empty box, the complainant said that he had a welding machine and rods at home and he needed the box to keep the rods in. When he was asked why he didn’t ask Mr Murphy for the rods when he was clearing out the shed, the complainant said that he did ask him, but that Mr Murphy didn’t respond. He said that he found other rods not in boxes and he put them on the pallet next to the yellow box. He said that he put them under the roof of the shed so that they would be protected from rain.

November 10th 2017

Mr Tobin did not accept the complainant’s explanation of his decision to take the red box and he decided that the complainant was to be dismissed for gross misconduct.   The letter of dismissal stated that the matters of concern were:

“Theft or unauthorised possession of our property, irrespective of value, namely it is alleged that on 25th October 2017 you removed a welding rod case containing a full box of welding rods from premises (sic).”

The letter informed the complainant that his explanation about taking an empty welding rods box was unsatisfactory, as he had said that he asked Mr Murphy earlier in the day if he could have the welding rods. His explanation that he replaced the empty box was also unsatisfactory, because, when the box was found, it contained a box of yellow welding rods.     Finally, the complainant’s statement that he put the loose rods and the yellow box in the shed out of the rain is not compatible with his statement that he placed the rods from the red box on the pallet out in the open. The letter of dismissal concluded:

“Having carefully reviewed the circumstances and considered your responses, I have decided that your conduct has resulted in a fundamental breach of your contractual terms which irrevocably destroys the trust and confidence necessary to continue the employment relationship, to which summary dismissal is the appropriate sanction.”

The letter confirmed that the complainant was dismissed with immediate effect and without notice.

December 6th 2017

The complainant appealed against the decision to dismiss him at an appeal hearing chaired by an independent human resources consultant. The complainant argued that his dismissal was a conspiracy, because he didn’t steal anything and that it was related to the fact that he had been out sick the previous year due to work-related stress and he hadn’t returned from his holidays in June 2017 and he took one week’s unauthorised leave. He said that he didn’t want to go back to work for the respondent company, but that he wanted to be compensated. His appeal was not upheld.

Evidence for the Respondent

Witnesses for the respondent included Mr O’Donnell, who was the director who met the complainant as he was about to put the welding rod box into the van to go home. He was followed in evidence by Mr Murphy, who asked the complainant to move materials from the old shed to the new garage on October 25th 2017. The managing director, Mr O’Connor gave evidence of his meeting with the complainant on October 26th, when he first said that the welding rods box was empty and then said that he had taken out the welding rods, left them on a pallet and had replaced them in the box when he was told by Mr O’Donnell to put it back.

The final witness for the company, Mr Tobin, attended on day two of the hearing. He was the director who dismissed the complainant.   He outlined what occurred at the disciplinary meeting at which the complainant was asked about being challenged by Mr O’Donnell when he was observed carrying the red box to the van to go home. He recalled that the complainant said that he was putting the red box in the van when Mr O’Donnell stopped him and asked him what he was doing with the box. He said that Mr O’Donnell told him to put it back in the shed. Mr O’Donnell said that the complainant told him that he put the welding rods back in the box and left it in the shed. He said that when he was taking the box, he took the rods out because he wanted it to store his own welding rods in the box at home. Mr Tobin recalled that the complainant said that he intended to ask Mr Murphy the next day if he could have the box.

Mr Tobin said that he didn’t believe the complainant’s explanation, because there was no time between returning to the shed and when Mr O’Donnell went to check that it had been returned, for the complainant to put the rods back into the box. He said that his belief was that the rods were in the box all along and that the complainant intended to take them. Mr Tobin said that in their work as contractors, their employees are on other people’s property, on public and private premises. They expect their employees to be trustworthy and honest, and they rely on them not to remove anything that belongs to someone else, regardless of the value.

On behalf of the complainant, Mr Slein suggested to Mr Tobin that the complainant did not in fact, take anything from the company, and he could not therefore, be accused of theft. Mr Slein asked Mr Tobin if he had considered any alternative to dismissal.   Mr Tobin responded that, by his own admission, the complainant intended to take the box and “there was no going back from that.”   He said that he did not trust the complainant. He did not believe that the box was empty; if he thought he had taken an empty box, he said “that may not be an issue,” but he firmly believed that the welding rods were in the box.

Reasons Why the Dismissal of the Complainant was Not Unfair

For the respondent, Mr Treanor argued that the conduct of the complainant justified his dismissal, that conduct being the unauthorised possession or theft of company property.   He argued that there were no special circumstances that warranted the deviation from the company’s disciplinary procedure which provides that theft is considered to be gross misconduct and subject to immediate dismissal.

Mr Treanor said that the process that ended with the complainant’s dismissal was fair and in accordance with the company’s disciplinary procedure. The process commenced with an initial investigation, following which the complainant was suspended on full pay. Witnesses were interviewed and the complainant was provided with copies of their statements. The disciplinary meeting was hosted by a manager not involved in the initial investigation and not associated with the incident itself. The complainant was notified in advance that the matter was serious and that the consequences could be that he would be dismissed.   He was invited to be accompanied at the disciplinary meeting and he attended with a colleague who he selected to assist with translation. At the end of the disciplinary hearing, the complainant was issued with a letter setting out the reasons for his dismissal and he was informed of his right to appeal. Following an appeal hearing by a person independent of the company, his dismissal was not overturned.

October 25th 2017 – Clearing Out the Old Shed

In his submission, the complainant said that on October 25th 2017, he was instructed by Mr Murphy to clear out the old shed. He asked how he would know what to throw out and what to move to the new garage and he said that he was told to keep belts, filters and blades that were not rusted. Other than that, the complainant’s submission notes that his instructions were not clear. He came across an old box with old welding rods inside and he knew that the previous mechanic (before Mr Murphy) found that they were unsuitable. The complainant said that he thought he could use the box as he assumed it would be put into the skip. He felt that, as a container with little or no value, he could take the box. The complainant’s submission notes that he removed some rods from the box and went towards his colleague’s van and he didn’t make any effort to conceal the box.   When he was confronted by Mr O’Donnell, he said that he wanted the box. When he was told to put it back, he said that he questioned why it was needed and he then returned it to the shed.

The following day, the complainant’s submission states that he was “ambushed” by Mr O’Connor and then suspended on full pay pending the outcome of an investigation. On November 10th, following a disciplinary hearing on November 7th, the complainant was dismissed.

Evidence of the Complainant

Having joined the company in 2005, the complainant said that he went from being a general operative to a tractor driver, and he also planted trees. In general, he said, he did whatever he was asked. He had looked for a special contract as a tractor driver, but this was refused.

When he came into work on October 25th 2017, the complainant said that the mechanic told him to clear out the shed. He said he argued that this was a job for the new mechanic and he “disagreed with doing this job.” He said that he was instructed to decide for himself what was needed and what could be thrown out and he said that he could not make this distinction. He said that the first person to give him instructions about the clearing-out job was the mechanic, and then Mr Murphy came and he showed him the pile of things that he thought could be dumped.   He said that Mr Murphy said to keep belts and filters. Towards the end of the day, the complainant said hat he came across a red box containing welding rods for aluminium. He had helped the mechanic with a job the week beforehand, and he said that the mechanic couldn’t fix a part with these rods. In response to questions from Mr Slein, the complainant said that the rods in the red box looked unusable, but he decided that the box itself would be useful for his own welding rods. He said that he brought the empty box to the van to go home. It was a question of throwing it away or taking it.  

At the van, the complainant met one of the company’s directors, Mr O’Donnell, who asked him what he was putting in the van. He replied that it was a red box. The complainant said that Mr O’Donnell asked him if there were welding rods in the box, but he couldn’t understand this question. He said that he asked Mr O’Donnell if he needed the box, and Mr O’Donnell instructed him to put it back. He then said that he detached a trailer from the van and that he took the box out and put it back. He said that he opened the box and took the rods from the pallet and put them in the box.

The following day, the managing director, Mr O’Connor asked to speak to the complainant and he asked him what he was taking. He asked the complainant about where he had replaced the box, and they went to where the pallet was, but the box wasn’t there. Mr O’Connor said “don’t worry, the mechanic has the box.” The complainant said that he tried to explain to Mr O’Connor that he wanted the empty box, but he was suspended and given a letter. He said that he was asked to sign for the letter, but without legal advice, he refused.

At some point after he was suspended, the complainant said that he consulted his solicitor. On November 1st, he was invited to a disciplinary meeting that took place on November 7th. This was hosted by a different director, Mr Tobin, who hadn’t been involved on October 25th and 26th.   He brought a colleague to the meeting to help him with translating. At the meeting, the complainant said he explained to Mr Tobin that he wanted the red box to store his own welding rods, but he said that Mr Tobin didn’t believe him. He understands that the accusation was theft or the intention to take something from his employer. He received a letter confirming his dismissal on November 10th.  

When he was asked about the appeal hearing and the fact that his dismissal was upheld, the complainant said that he thought this was a “deal” between his employer and the HR consultant who heard the appeal. He made this assumption because the consultant worked in a business park where the respondent company has a landscaping contract.

The complainant then answered questions from Mr Treanor, on behalf of the respondent. He said that on October 25th, he understood that his job was to throw away useless stuff and to keep good stuff for moving to the new garage. He said that the welding rods and the red box were of no value because the rods couldn’t be used by the mechanic and the box was “packaging.” Mr Treanor asked the complainant why he claims that he replaced the welding rods on the pallet of good stuff, he said that Mr Murphy might have wanted to sort them out. He said that when he found the red box in the shed, it was half full of welding rods. When he brought it to the van, it was empty, because he left the rods on the pallet with the stuff to be kept. When he returned the box, he replaced the rods inside and left the box on the pallet.   He said that he knew the mechanic would be coming in the next day and he would sort them out. When he was asked by Mr Treanor why he didn’t take the welding rods, he said that they were not suitable for his welding machine.

Mr Treanor then asked the complainant why he told Mr Tobin, at the disciplinary meeting, that he put the useless rods back into the red box to protect them from the elements. He had explained that he did this because he intended to ask Mr Murphy the next day if he could have them. The complainant responded that he was referring to the yellow box of welding rods at that stage. Mr Treanor put it to the complainant that his intention was to steal the red box of rods with the yellow box inside and that he was caught. The complainant replied, “that’s your view” and he asked, “why didn’t (Mr O’Donnell) ask me to show him what was in the box?”

Concluding his evidence, the complainant said that he hasn’t worked since he was dismissed because he is stressed and he also suffers from headaches. He said that when he gets nervous, his head spins and he has neck pain from driving the tractor. He is in receipt of illness benefit from the Department of Social Protection.

Reasons Why the Dismissal of the Complainant was Unfair

The complainant’s case is that there were no substantial grounds for his dismissal and in fact, that the precise grounds for his dismissal are unclear. His submission claims that it was not established that the complainant removed a welding rod case containing a full box of welding rods from the company’s premises or that his conduct constituted either “theft” or “unauthorised possession of the respondent’s property.” It is clear that the complainant didn’t remove any property from the premises. The letter of dismissal refers to the complainant’s conduct being “a fundamental breach of your contractual terms which irrevocably destroys the trust and confidence necessary to continue the employment relationship…” This statement follows a paragraph relating only to whether or not the box contained welding rods.

It was submitted that the only evidence available to the respondent was that the complainant thought that he could take the red box because it was going to be put into a skip.   When he was told to put it back, he did so. The complainant’s submission states that this conduct falls far short of substantial grounds justifying dismissal. He argued that he could have been issued with a written warning, but that no consideration was given to a sanction short of dismissal.

Case Law on the Proportionality of the Dismissal

Several legal precedents were cited by the complainant as support for his contention that his dismissal was unfair:

Nutweave Limited trading as Bombay Pantry and Rajesh Yadav, UDD 1623

In this case at the Labour Court, the Court found that the sanction of dismissal would have been “wholly disproportionate even had the allegations raised against the complainant been upheld in a fair and objective disciplinary process.”

Aisha Olukoya V Veolia Transport Dublin Light Rail Limited, UD 2196/2011

Here, the Labour Court found that the conclusion of gross misconduct, where the complainant spat at a customer in response to a racial slur, could not be upheld.

Samuel J Frizelle v New Ross Credit Union Limited, [1997] IEHC 137

In this case at the High Court, Mr Justice Flood stated that one of the premises for dismissal must be, “…the actual decision as to whether a dismissal should follow misconduct should be a decision proportionate to the gravity of the complaint and the effect of dismissal on the employee.”

John Palmer v Lakemarsh Holdings Limited and Connaught Hospitality Limited, UD 836/2014

Here, Mr Palmer was dismissed for assisting a contractor to put items that were being cleared out into the contractor’s van. The dismissal was found to be unfair.

Breach of Fair Procedures

It is the complainant’s case that “insofar as there was an appearance of procedure, it was a façade and the complainant was absolutely and completely denied his right to fair procedures.” His submission claims that his dismissal was pre-determined and that this is illustrated by the language used in the letter of suspension, which refers to “alleged theft or unauthorised possession of our property…” His submission states that the reference in the letter of dismissal to being “caught” taking the red box, rather than being “seen” taking the box, is indicative of the company’s pre-determined approach to the complainant’s actions. The notes of the disciplinary meeting refer to Mr Tobin explaining to the complainant that taking something without permission is regarded by law as theft. On this basis, the complainant argues that the entire process that led to his dismissal was “biased, pre-judged and pre-determined.”

Referring to the meeting on October 26th, following which he was suspended, the complainant’s submission refers to this as an “ambush,” because he was given no notice and the suspension was imposed as a sanction, as it was stated to follow an act of gross misconduct. At the disciplinary hearing on November 11th, the “matters of concern” referred to in the invitation letter were considered as matters of fact and the outcome was pre-judged and biased.

Arguing that the respondent’s directors acted in breach of the complainant’s contract of employment, his submission stated that the directors failed to consider a sanction short of dismissal, they did not take account of his service of 12 years, they did not advise him that he could be accompanied by a union official and they dismissed him without a careful investigation of the facts. Also, he was not recommended to seek legal advice and he was not given the opportunity to cross-examine witnesses on their statements. As the complainant is Latvian, he submitted that the does not have good English and he was not given a translation of the relevant policies and procedures.

Referring to section 6(7) of the Unfair Dismissals Act, the complainant’s submission notes that my role, as the adjudication officer is to consider the reasonableness or otherwise of the employer’s conduct in relation to this dismissal, and the extent of the respondent’s compliance with the provisions of the Code of Practice on Grievance and Disciplinary Procedures (Statutory Instrument 146/2000).   His submission states that the conduct of the respondent was entirely unreasonable and that the dismissal of the complainant was in breach of SI 146/2000.    

Case Law on the Fairness or Otherwise of the Dismissal Procedure

O’Neill v Beaumont Hospital Board [1990} IRLM 149

In this case at the Supreme Court, the Chief Justice, Mr Finlay, referred to the test of objectivity in which, “the plaintiff, who is a reasonable man might reasonably fear that prejudgement expressed…would prevent a completely fair and independent hearing of the issues which arise.”

The Legal Framework

Section 6(1) of the Unfair Dismissals Act 1977 (“the Act”) provides that:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal, unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case.

Section 6(4)(b) of the Act provides that;

“…the dismissal of an employee shall be deemed, for the purposes of this Act not to be an unfair dismissal if it results wholly or mainly from …the conduct of the employee.”

It is the respondent’s case that the complainant was dismissed for attempting to take a box of welding rods from their premises on October 25th 2017. The complainant’s explanation that the box was empty and that he was taking it to store his own welding rods at home was not accepted by the director who dismissed him. The director decided that the complainant’s conduct resulted in a fundamental breach of trust and confidence and that “summary dismissal is the appropriate sanction.”

Was the Decision to Dismiss Reasonable and in Proportion to the Conduct?

As has been established by the EAT in many instances, and specifically in the case of Looney & Co Limited v Looney UD 843/1984, it is not for me to establish the guilt or innocence of the complainant. My job is to determine if it was reasonable for the respondent to conclude that the complainant attempted to steal a box of welding rods and, in reaching this conclusion, was the decision to dismiss him proportionate to the seriousness of his conduct?

At all times, the complainant has said that he intended to take a red plastic box. One aspect of the dispute between the parties centres on whether the box was empty or whether it contained welding rods. Having listened to the complainant’s evidence, it is my view that his explanation that he took an empty box is not credible.   I have reached this conclusion for the following reasons:

As he was leaving for home with the red box on the evening of October 25th, when he was confronted by Mr O’Donnell, he could have simply opened the box and explained that he was taking it to store his own welding rods at home. He could have shown Mr O’Donnell that there was nothing inside. Instead, he proceeded to the van and he only put the box back when Mr O’Donnell told him to do so a second time.

Shortly afterwards, when it was opened by Mr O’Donnell, the box was half full and it also contained a smaller box of rods. I do not accept the complainant’s explanation that, after he was told to put the box back, he replaced the welding rods inside. Having been told to put the box back, the possibility that he refilled it with welding rods is akin to him being “hoist with his own petard” and makes no sense.

It is my view that a reasonable employer would reach the conclusion that the box always contained welding rods and that the complainant intended to take them for his own use. The issue that follows from this is, was it reasonable to dismiss the complainant because he intended to take the welding rods?

The letter of dismissal of November 10th states that the “matters of concern” at the disciplinary meeting were “theft or unauthorised possession of our property.”   It is apparent from the letter’s conclusion however, that the complainant was not dismissed for stealing, but for attempting to steal, conduct which the decision-maker concluded “resulted in a fundamental breach of your contractual terms which irrevocably destroys the trust and confidence necessary to continue the employment relationship.” A more simple and straightforward statement would have informed the complainant that he was dismissed for being dishonest, for this is the thing that destroys the trust and confidence on which the employment relationship relies.   The dishonesty in question comprises the complainant’s intention to take the box of welding rods, followed by his failure to tell the truth in the investigation and at the disciplinary hearing.

“Redmond on Dismissal Law” by Dr Desmond Ryan (Bloomsbury Professional Limited 2017), at paragraph 16.12 addresses the considerations required of an employer in response to a finding of dishonesty. These include the following:

Whether the employee’s behaviour was deliberate;

Whether they attempted to cover up their behaviour;

If they changed their story during the investigation;

Whether the employer’s policies and procedures informed the employee that the wrong in question was a disciplinary matter;

Whether the employee was unable to explain his or her behaviour or did not immediately refute the allegation of dishonesty.

From the evidence submitted at the hearing of this matter, it is apparent to me that the complainant intended to take the box containing the welding rods and, in this respect, his actions were deliberate. During the investigation, he changed his story, and said that he took the welding rods out of the box and left them on a pallet and that he returned the rods to the box when he was instructed by Mr O’Donnell to put the box back. When he was challenged about changing his story, he said he could do so if he wished.

The complainant’s contract of employment states that theft is considered as gross misconduct and “normally results in dismissal with no prior notice.” The employee handbook contains a section with the heading, “Company Property” and states that “property of any type is not to be taken away from the premises without prior approval.” The complainant’s submission at the hearing suggested that his English was not good enough to enable him to understand the workplace documents and that translations should have been provided. From my observations at the hearing however, I found the complainant to be reasonably capable of understanding and communicating and it is my view that any lack of proficiency in English was not an inhibiting factor in his ability to understand the implications of attempting to take something that was not rightfully his.

Removal of company property without permission is problematic for any employer. Where employees work on clients’ sites, the employer must have confidence that they will not take anything belonging to anyone else. It is my view that the complainant’s decision to take the box of welding rods and his response during the investigation and the disciplinary hearing was behaviour that undermined his employer’s confidence in him as an employee that could be trusted. It is my view that the decision to dismiss him was not unreasonable in these circumstances.

I have considered the case law submitted by the complainant in support of his contention that the decision to dismiss him was disproportionate to the offence. Each case where misconduct is at issue turns on its own facts and I have reached my conclusion here based on the facts presented to me at the hearing. I note the findings of Mr Justice Flood in the case of Samuel J Frizelle v New Ross Credit Union Limited, [1997] IEHC 137. It is my view that, the decision to dismiss any person must be weighed carefully in light of the specific conduct in the context of each particular workplace. I am satisfied that the employer in this case has taken all the facts into consideration, including what Mr Justice Flood referred to as the “gravity of the complaint and the effect of dismissal” on the complainant.

Was the Process Fair?

The complainant claims that he was “ambushed” on the morning of October 26th, when he was asked to attend a meeting with the company’s managing director and challenged about taking the box of welding rods. He was not given the opportunity to be accompanied at this meeting and he wasn’t given notice in advance. While there were flaws in the failure to give him notice and to allow him the option of being accompanied at that meeting, it is my view that the remaining components of the process were in accordance with the requirements of procedural fairness. I cannot identify how any advantage would have occurred for the complainant if this meeting had been conducted differently.

It is apparent that the decision to suspend the complainant was taken to facilitate an investigation and I disagree with the complainant’s submission where it was argued that he was suspended as a penalty and that the decision to dismiss him was pre-determined.

The decision to dismiss the complainant was reached after a disciplinary meeting which he was notified about in advance and at which he was accompanied by a colleague of his choosing, who also acted as a translator. It is my view that his colleague was best placed to translate for him, and nothing turns on the fact that an independent translator was not provided. While the complainant said that he consulted a solicitor after he was suspended, he did not ask to be accompanied by his solicitor.

Conclusion

Having considered all the evidence submitted at the hearing, I find that the employer lost trust in the complainant arising from the incident on October 25th 2017, in which he attempted to take a box of welding rods. I find that the complainant compounded this predicament in the dishonest way he replied to questions at the disciplinary hearing, and in the end, the employer’s decision to dismiss him was not unreasonable.   Apart from some initial haste, it is my view that the process that resulted in the complainant’s dismissal was in accordance with the respondent’s disciplinary procedure and in line with the Code of Practice in SI 146/2000. In conclusion therefore, I find that the dismissal of the complainant was not unfair.

I have found that the decision of the respondent to dismiss the complainant in this case was reasonable and proportionate and I also find that the process was fair.   On this basis, I have decided that the complaint under the Unfair Dismissals Act is not well founded.

The complainant claims that he was entitled to statutory notice of the termination of his employment, in accordance with the Minimum Notice and Terms of Employment Act 1973.

It is the respondent’s case that, because the complainant was dismissed as a result of a finding of gross misconduct, he was not entitled to notice. At the hearing, evidence was presented by the payroll officer that the complainant was paid one week’s pay in lieu of notice.

Section 8 of the Minimum Notice and Terms of Employment Act 1973 -2015 provides as follows:

“Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.”

I refer to the determination of the Labour Court in the case of Clogrennane Lime Limited and Joseph Curran, MN/16/1. Mr Curran was dismissed for gross misconduct and his dismissal was determined by the Court to be not unfair. In this context, the Chairman, Mr Foley upheld the decision of the adjudicator that Mr Curran’s claim for statutory minimum notice had failed.

I have concluded here that the dismissal of the complainant was not unfair and I also find that, arising from the incident on October 25th 2017 and his conduct at the disciplinary investigation, it was reasonable for his employer to conclude that he should not continue in employment and work out his notice.

I have decided that this claim under the Minimum Notice and Terms of Employment Act 1973 – 2015 is not upheld and that no payment is due to the complainant in respect of pay in lieu of notice.

Unfair dismissal, gross misconduct, stealing, minimum notice